JUDICIAL TEMPERAMENT is important. But I see that it can be entirely misperceived. Via Romesh Ponnuru at National Review, I discovered that July 2 Andrew Sullivan writes of judicial temperament,

It should match the temperament of an umpire - not a pitcher or catcher or any other role. What troubles me about Antonin Scalia is not so much the substance of his views (although I share very few of them) but the angry, sarcastic, bitter tone of his judgments. David Broder had a similar take last week. Part of what it takes to be a judge, in my mind, is a certain indifference to passionate advocacy, a sense of moderation, and prudence. If someone cares as passionately as Scalia does about the moral issues in what he has called the "culture war," and if he isn't even interested in moderating these passions in his judicial rulings, then it strikes me that he is not acting as a justice should act: with dignity, care, distance, and respect for alternative arguments.

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

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One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

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It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Sullivan completely misses Scalia's point, and why Scalia is angry. Scalia does not care that much about affirmative action, and being rather libertarian (one of his defects, to my mind), he probably would vote against the Texas sodomy law as a citizen. But as a judge, he is offended when other judges violate their oath of office and pretend the law says something it does not. That kind of behavior is serious, and calls for a serious response. If the President were to ignore the Constitution and say he was going to eliminate the Texas sodomy law, we would, I hope, impeach the President. Why, then, do we tolerate a Supreme Court doing clearly unconstitutional things? Unless, that is, one's view of the Constitution is that it gives absolute power to the Supreme Court, which, a little bit concealed but not much, is indeed a common academic position.

Sullivan, I think, does take this position. The judges vote on policy, and the rest of us obey. A judge who loses the vote should not be a sore loser. The reasoning in the judicial opinions is unimportant--the clerks do that part anyway-- except that they should be properly bland, like politician's speeches. To attack any other judge's position would be negative campaigning, which is rude.

Thus, to Sullivan it is Scalia who lacks the judicial temperament, since he cares passionately about the truth and writes clear opinions that dissect the muddied opinions of other judges. On the other hand, a more cynical judge who cares only about power and writes the law to fit his policy preferences does have the judicial temperament, so long as his opinions are bland. And why shouldn't they be, since he does not care to address the logic of the case?

Many people, including judges, share Sullivan's view. It is the view that important writing should be mostly bland and bureaucratic in style, with a few grand phrases (though none that are striking or original) and lots of big words. It is a style that above all obscures whatever reasoning may exist and hides the identity of whoever writes it. So often style reveals thought!

[ http://php.indiana.edu/~erasmuse/w/03.07.02a.htm ]

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